In Re Robert E. Shafer v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 13, 2024
• Docket: 01-24-00190-CR
• Status: Published

Opinion

Opinion issued June 13, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00190-CR ——————————— IN RE ROBERT E. SHAFER, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Robert E. Shafer, incarcerated and proceeding pro se, filed a petition

for a writ of mandamus asserting that the trial court has failed to perform a

ministerial duty by refusing to consider or rule on his post-conviction “Motion for

the Appointment of Counsel to Prepare Application for Habeas Corpus and Litigate

Ineffective Assistance of Counsel” and the corresponding “Brief on the Merits and

Authority of Law to Support” his motion. Relator requested that this Court issue a writ of mandamus “ordering [the trial court] to set, hear, and thereafter enter

appropriate orders” on his motion.

This Court requested a response to relator’s petition for writ of mandamus.

Real party in interest, the Galveston County District Attorney’s Office, filed a

response the mandamus petition.

We conditionally grant the petition.1

Background

On May 17, 2001, a Galveston County jury found relator guilty of the felony

offense of aggravated sexual assault2 and assessed his punishment at confinement

for seventy years and a fine of $10,000. The judgment of the trial court was affirmed

on appeal. See Shafer v. State, 82 S.W.3d 553, 557 (Tex. App.—San Antonio 2002,

pet. ref’d).

According to the State’s response, on or around October 1, 2003, relator filed

a post-conviction application for writ of habeas corpus, asserting, among other

arguments, that he was provided with ineffective assistance of counsel. On

November 19, 2003, the Texas Court of Criminal Appeals denied relator’s request

for habeas relief without a written order. Then, approximately nineteen years later,

1 The underlying case is The State of Texas v. Robert E. Shafer, Cause No. 99-CR-0484, in the 56th District Court of Galveston County, Texas, the Honorable Lonnie Cox presiding. 2 See TEX. PENAL CODE ANN. § 22.021.

2 on October 21, 2022, relator filed the pro se motion at issue in this original

proceeding, in which he requested appointment of counsel to pursue habeas relief on

his behalf.

On the same date, relator submitted a letter to the trial court clerk requesting

that his motion be brought “to the court[’]s attention,” and “set on docket to be ruled

upon.” After no action was taken on his motion for a year, on October 27, 2023, a

letter was filed with the trial court clerk on relator’s behalf, requesting that relator’s

motion “be brought to the court[’]s attention for a docket setting, hearing and ruling.”

Nevertheless, the trial court did not take any action.

On March 8, 2024, relator filed his petition for writ of mandamus with this

Court. Relator asserted that the trial court had failed to perform a ministerial act by

refusing to consider his properly filed motion. Relator noted that it had been “more

[than] one year since” he had filed his motion for the appointment of post-conviction

habeas counsel, and no ruling had been made by the trial court. Accordingly, relator

asserted that “[m]andamus is appropriate.”

Relator’s mandamus petition included a “verification” in which he “declare[d]

under penalty of perjury that all statements of fact submitted [in the mandamus

petition] and attached appendi[ces] [were] true and correct, as well as offered in good

faith.” Further, relator’s mandamus petition included an appendix containing the

following documents: (1) a letter from relator to the Galveston County District

3 Clerk, file-stamped October 21, 2022, requesting that his motion for appointment of

post-conviction habeas counsel be brought “to the [trial] court[’]s attention,” and

that his motion be “[s]et on docket to be heard and ruled upon,” (2) the first page of

relator’s “Brief on the Merits and Authority of Law to Support” his motion for

appointment of counsel, file-stamped October 21, 2022, (3) the first-page of relator’s

“Motion for the Appointment of Counsel to Prepare Application for Habeas Corpus

and Litigate Ineffective Assistance of Counsel,” filed-stamped October 21, 2022,

and (4) a letter from Julia A. Carpenter, who purported to be relator’s wife, to the

Galveston County District Clerk and the trial court coordinator, file-stamped

October 27, 2023, noting that relator’s “motion ha[d] been pending for over a year,”

and requesting “that it be brought to the [trial] court[’]s attention for a docket setting,

hearing and ruling.”

On April 2, 2024, the State filed its response to relator’s petition for writ of

mandamus. The State noted that on March 15, 2024, it filed, in the trial court, a

response to relator’s motion, asserting that the “State takes no position on whether

[relator’s] motion for appointment of habeas counsel should be granted or denied,”

but “respectfully recommend[ing] that [the trial court] proceed with the issuance of

its ruling and either grant or deny that motion.”

4 The mandamus record reflects that, as of April 2, 2024, the trial court had yet

to rule on relator’s “Motion for the Appointment of Counsel to Prepare Application

for Habeas Corpus and Litigate Ineffective Assistance of Counsel.”

Standard of Review

In a criminal matter, to be entitled to mandamus relief, a relator must establish

that he has no adequate remedy at law to redress his alleged harm and that the act he

seeks to compel is ministerial. See In re Mendoza, 467 S.W.3d 76, 78 (Tex. App.—

Houston [1st Dist.] 2015, orig. proceeding). The relator generally must show that

(1) the lower court had a legal duty to perform a nondiscretionary act; (2) the relator

made a demand for performance; and (3) the subject court did not perform. See id.

Analysis

“[A] trial court has a ministerial duty to rule upon a motion that is properly

and timely presented to it for a ruling . . . .” In re State ex rel. Young v. Sixth Jud.

Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

Consequently, mandamus relief may issue to compel a trial court to rule on a motion

when the trial court does not rule in a timely fashion. See In re Mendoza, 467 S.W.3d

at 78; see also In re Garrett, Nos. 14-14-00669-CR, 14-14-00670-CR, 2014 WL

4207148, at *1 (Tex. App.—Houston [14th Dist.] Aug. 26, 2014, orig. proceeding)

(mem. op., not designated for publication). “[T]he need to consider and rule upon a

motion is not a discretionary act.” In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—

5 Amarillo, orig. proceeding). To be entitled to relief, relator must establish that “the

trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the

motion; and (3) failed or refused to rule on the motion within a reasonable time.” In

re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig.

proceeding).

Turning to these requirements, relator must first establish that the motion at

issue was properly filed, thereby triggering the trial court’s duty to perform the

nondiscretionary act of ruling within a reasonable time. Relator bears the burden of

providing this Court with a record sufficient to establish a right to mandamus relief.

See TEX. R. APP. P. 52.3(k)(1)(A) (requiring relator to file appendix including

“certified or sworn copy of . . . any other document showing the matter complained

of”); 52.7(a) (requiring relator to file “certified or sworn copy of every document

that is material to the relator’s claim for relief and that was filed in any underlying

proceeding”).

With his mandamus petition, relator provided the Court with the file-stamped

copies of the first page of both his motion for appointment of post-conviction habeas

counsel and brief in support of his motion, along with his letter requesting that the

trial court set the motion for a hearing. In its response, the State argued that we

cannot determine whether relator properly filed his motion because relator “ha[d]

not satisfied certain procedural requirements” for mandamus relief. Specifically, the

6 State asserted that relator had not complied with Texas Rule of Appellate Procedure

52, because “[r]elator’s appendix appear[red] to contain only the first page of his

two-page motion for appointment of counsel,” and similarly “appear[red] to only

include the first page of his 13-page brief in support of his motion for counsel.”

Thus, according to the State, “[i]n its current state . . . the record [was] insufficient

to support the granting of mandamus relief.”

We find that the mandamus record suffices for our limited review. In his

mandamus petition, relator requested only that this Court “[o]rder[] [the trial court]

to set, hear, and thereafter enter appropriate orders” on his motion for appointment

of post-conviction habeas counsel. Relator has not requested that we direct the trial

court to rule a certain way on his motion, nor do we offer any opinion on how the

trial court should rule. See In re Mendoza, 467 S.W.3d at 78 (“While a trial court

has a ministerial duty to rule upon a motion that is properly and timely presented to

it for a ruling, in general it has no ministerial duty to rule a certain way on that

motion.”). Based upon the motion’s first page alone, we can discern both the nature

of the motion that awaits a ruling by the trial court and the date upon which it was

filed. Although we would require a full copy of the motion if we were required to

determine its merits, it would not be proper for us to determine the merits of the

motion before the trial court has ruled upon it in the first instance.

7 Based on the mandamus record presented, which included file-stamped copies

of the first page of relator’s motion for appointment of post-conviction habeas

counsel and his brief in support of his motion, we conclude that relator properly filed

his motion in the trial court because it includes all of the information that we need

to determine whether the trial court had a ministerial duty to rule upon the motion

and failed to comply with that duty. See In re State ex rel. Young, 236 S.W.3d at

210 (“[A] trial court has a ministerial duty to rule upon a motion that is properly and

timely presented to it for a ruling . . . .”).

Turning to the second requirement, relator must establish that the trial court

was asked to rule upon the motion. See In re Henry, 525 S.W.3d at 381. Although

“[s]howing that a motion was filed with the clerk does not constitute proof that the

motion was brought to the attention of the court,” In re Smith, 263 S.W.3d 93, 96

(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding), relator has done more than

that. The mandamus record provided by relator included a letter from relator,

file-stamped October 21, 2022, in which he requested that his motion be “[s]et on

docket to be heard and ruled upon.” After approximately a year without his motion

being set on the trial court’s docket or ruled upon by the trial court, Carpenter,

relator’s wife, sent a letter to the Galveston County District Clerk and court

coordinator, file-stamped October 27, 2023, stating that the motion had “been

8 pending for over a year.” She requested “that it be brought to the court[’]s attention

for a docket setting, hearing and ruling.”

Relator’s provision of his file-stamped motion and a file-stamped request for

a hearing on his motion distinguishes this case from those in which courts have

denied mandamus relief. In re Henry, 525 S.W.3d at 382 (denying mandamus relief

where relator did not supply file stamped copy of motion under review); In re

Mendoza, 467 S.W.3d at 79 (denying mandamus relief where “relator ha[d] not

provided [the] Court with a record that show[ed] that he made any request of [the

trial court] to perform a nondiscretionary act that [the trial court] refused”). We

conclude that, under these circumstances, relator has provided a sufficient record to

establish that he requested a ruling on his motion.

Finally, to be entitled to mandamus relief, relator must establish that the trial

court failed or refused to rule on his motion within a reasonable time. See In re

Mendoza, 467 S.W.3d at 78. A trial court must be afforded a reasonable time within

which to perform its ministerial duty to rule on a properly filed motion before

mandamus relief is appropriate. See In re Henry, 525 S.W.3d at 382. However,

there is no “bright-line” rule regarding what constitutes a “reasonable time,” and

instead, the determination is dependent on the circumstances of each case. See In re

Chavez, 62 S.W.3d at 228; see also In re Keeter, 134 S.W.3d 250, 253 (Tex. App.—

9 Waco 2003, orig. proceeding) (“Whether the judge has acted within a ‘reasonable’

period of time, depends on the circumstances of the case.”).

Here, the mandamus record reflects that relator filed his motion for

appointment of post-conviction habeas counsel on October 21, 2022. Accordingly,

at the time relator filed his petition for writ of mandamus on March 8, 2024, more

than sixteen months had passed without the trial court ruling on relator’s motion.

We conclude, under these circumstances, that “reasonable time” has passed, and the

trial court has failed to rule on relator’s motion. See In re Hearn, 137 S.W.3d 681,

686 (Tex. App.—San Antonio 2004, orig. proceeding) (concluding trial court’s

failure to rule on relator’s motion to recuse eight months after filed was unreasonable

under circumstances of case); see also In re Marez, 345 S.W.3d 503, 503–04 (Tex.

App.—San Antonio 2011, orig. proceeding) (granting mandamus relief where trial

court failed to rule on relator’s motion for three years).

Conclusion

For these reasons, we conclude that the trial court had a ministerial duty to

rule on relator’s motion for appointment of post-conviction habeas counsel within a

reasonable time, that a reasonable amount of time has passed, and the trial court’s

failure to rule amounts to an abuse of discretion, for which relator lacks an adequate

remedy by appeal.

10 Accordingly, we conditionally grant relator’s petition for writ of mandamus

and direct the trial court to rule on relator’s October 21, 2022 “Motion for the

Appointment of Counsel to Prepare Application for Writ of Habeas Corpus and

Litigate Ineffective Assistance of Counsel.” While we direct the trial court to rule,

we do not direct the trial court to “rule a certain way” on relator’s motion. See In re

Mendoza, 467 S.W.3d at 78. We are confident that the trial court will comply with

this Court’s ruling, and the writ will issue only if the trial court fails to comply within

thirty days of the date of this opinion. All pending motions are dismissed as moot.

April Farris Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).